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to execute these conveyances. And finally, the agent of the heirs and the administrator, on May 18, 1911, he contracted with W. A. and that as such he could purchase only for Feild to sell him certain portions of this his principals, and that the proof shows the land, and took notes for the purchase money, money used in the purchase of the lands was and this suit was filed two days before the secured from Luchesi by an arrangement be first of these notes matured.

tween the parties for the specific purpose of A letter from appellant to 0. B. Feild, dat- purchasing for the estate, and that the moned April 1, 1904, was introduced in evidence, ey was used for this purpose, and that the a portion of which read as follows:

purchase with this intention, made with mon"Referring to our conversation to the ey raised by appellees for that purpose, conamount I am out on the property purchased by stituted appellant a trustee, and that he holds me at Brown mortgage sale, I estimate that after giving credits I am shy about $2000 and the title as such. The reported cases all hold if the heirs could pay that amount cash, Ithat evidence to establish the existence of would deed the property to them, provided it such trust must be clear, positive, and satiswas done by April 6th, as I have a note due factory, and some cases say that the evi. on that date which I do not want to renew."

dence must be so clear and positive as to It appears, however, that certain of the leave no doubt; and all the cases agree that Feild heirs contributed to the payment of

a mere preponderance of evidence is not suffithe taxes for the years 1908, 1909, and 1910, cient to ingraft a trust upon property conbut no such contributions were made by ei- veyed by deed containing no recognition of ther O. B. or W. A. Feild. Appellant admits the trust. And we think this evidence is not the receipt of these contributions on account sufficient to meet that requirement. In our of taxes, but says at that time he was still opinion as much as can be said of this evi. extending to certain of the heirs an option to dence and its sufficiency (and we do not debuy back the lands, and these contributions cide even that) is that appellant proved recwere treated as payments for this option.

reant to his promise to convey this title to Two grandchildren of Silas Feild, who the Feild heirs or to distribute the proceeds were twins, and were 32 years old when of the sale of this property among them. their depositions were taken, testified that

[3, 4] The agreement between these parties, appellant's purchase had been the subject of if the facts were as appellees contend, is not numerous family conferences, and that no one enforceable as constituting an express trust, claimed for a number of years after his pur. for the reason that the entire agreement rests chase that he had bought as trustee, but that in parol. Nor can the evidence in this case it was understood that he had repeatedly of- be said to constitute a resulting trust because fered the heirs the privilege of repaying him the purchase money was furnished by appel. his money and taking the title to the land, lant, and was raised by him through a mortbut this offer had never been accepted.

This suit was begun on May 17, 1912, and gage which he gave on his own home. This the court found that appellant in buying the had failed in their efforts even to raise the

was done after the administrator and heirs lands, sold under the Brown mortgage, acted

money with which to pay the interest on the as and under the obligations and duties of a trustee for the Feild heirs and decreed that mortgage debt. Every one, including Luchehe held the title as trustee and confirmed all loan of money, declined to make it upon the

si, to whom application was made for the contracts and sales made by him and ordered an accounting of all his transactions in the security offered, and the entire Feild estate matter before the clerk as master. This ac-debtedness, exclusive of interest and costs of

appeared to be imperiled. The mortgage incounting was had and the master made bis suit, was $4,000, and appellant bought only report.

a portion of the property sold at the fore Jno. M. Rose and Marshall & Coffman, all closure sale, and the property which was of Little Rock, for appellant. O. 'D. Long- bought by him for $2,615, together with the streth and Grover C. Morris, both of Little other property sold, brought the amount of Rock, for appellees.

the mortgage indebtedness, including the

costs and interest, and at the sale there was SMITH, J. (after stating the facts as competitive bidding, and a large part of the above). Appellant insists there was a defect property was bought by the widow of Silas of parties in that the court undertook to ren- Feild, who was also the widow of one of his der a final decree both as to the title to the sons and the mother of several of the heirs property and the accounting for the rents, interested in this estate. The exact amount when a number of the Feild heirs were nei- of money which appellant would require ther parties plaintiff nor defendant. Appel- could not be known, and was not known until lant also says this action is barred by lach- after the sale, when he borrowed from the es. But we find it unnecessary to consider Pulaski Trust Company the money with either of these questions, as we think the which to make his payment. This loan was chancellor's finding that there was a trust made to appellant individually upon the use in the land in favor of the heirs of Silas of his individual property as security; and, Feild is contrary to the preponderance of the even though an agreement might have existed evidence.

at the time of this sale to hold the property [1, 2] Appellees insist that appellant was as trustee for the Feild heirs, such an agree

ment would not constitute a resulting trust. | with respect to land, may be enforced under Discussing this question in the case of Gray- any circumstances, there must be something son v. Bowlin, 70 Ark. 145, 66 S. W. 658, Mr. more than a mere verbal promise, however un

equivocal, otherwise the statute of frauds would Justice Battle, speaking for the court, said: be virtually abrogated; there must be an ele

"This court in Sale y. McLean, 29 Ark. 612, ment of positive fraud accompanying the promand in Du Val v. Marshall, 30 Ark. 230, said in ise, and by means of which the acquisition of effect that, in order to create a trust of this the legal title is wrongfully consummated. nature (resulting trust), payment of the pur- Equity does not pretend to enforce verbal promchase money must be made at the time of the ises in the face of the statute; it endeavors to purchase. By this it was meant that the trust prevent and punish fraud, by taking from the must arise, if at all, from the original trans- wrongdoer the fruits of his deceit, and it acaction at the time it takes place, and at no oth-complishes this object by its beneficial and farer time, and that it cannot be mingled with reaching doctrine of constructive trusts." any subsequent dealings. Some of the cases use

It follows from what we have said the the language, 'at the date of the payment of the purchase money'; others, at the time of chancellor erred in his finding that appelthe execution of the conveyance.' But all of lant held the interest to the property in questhem mean the same thing, namely, that it is tion as trustee and in his directions that an impossible to raise a resulting trust, so as to accounting be had of the proceeds of the sale divest the legal estate of the grantee, or his heirs, by the subsequent application of the and disposition of the trust property, and his funds of a third person to the satisfaction of decree to that effect will therefore be revers. the unpaid purchase money. Botsford v. Burr, ed and the cause remanded, with directions 2 Johns. Ch. IN. Y.1 406; Rogers v: Murray, to the chancellor to dismiss the complaint for 3 Paige [N. Y.) 390 ; Leading Cases in Equity, supra, 338. The trust arises out of the circum- want of equity. stances that the money of the real purchaser, and not of the grantee in the deed, formed

KIRBY, J., dissents. the consideration of the purchase, and became converted into land."

[5] And that opinion quoted with approval the following language from the case of

EVATT et al. v. MIER et al. (No. 83.) Bland v. Talley, 50 Ark. 71, 6 S. W. 234: (Supreme Court of Arkansas. June 29, 1914.)

"Now a arol agreement that another shall 1. MARRIAGE (& 11*)_VALIDITY. be interested in the purchase of lands, or a parol declaration by a purchaser that he buys left her, and later 'falsely represented to L

Where decedent, having married a wife, for another, without an advance of money by that he'had been divorced, and then married that other, falls within the statute of frauds her, L.'s marriage to decedent, though in good and cannot give birth to a resulting trust."

faith, was void. (6, 7) Nor can it be said that a trust ex

(Ed. Note.--For other cases, see Marriage, maleficio arose from the facts of this trans- Cent. Dig. $ 30; Dec. Dig. 11.*] action. The essentials of such a trust were 2. BASTARDS

(§ 1*)-LEGITIMATION-RIGHT discussed in Spradling v. Spradling, 101 Ark.

TO INHERIT-STATUTES. 451, 142 S. W. 848, in which case it was said:

Kirby's Dig. 8 2640, provides that the is"There is no testimony indicating that the solved by divorce shall be deemed and consider

sue of all marriages deemed null in law or dishusband fraudulently induced the wife to have ed legitimate. Held that, where decedent, havthe deed made to him by reason of a promise ing married, left his wife, and, after falsely inthat he would convey the land to or hold it forming L. that he had procured a divorce, marfor such children. There is po testimony that ried her, her children, though her marriage was he acquired the title by any intentionally false void, were nevertheless legitimate under such or fraudulent promise, so that it could be said statute, and entitled to inherit decedent's estate that a trust ex maleficio arose from the trans- equally with the issue of the first marriage. action. To create such a trust, the mere verbal promise and its breach is not sufficient.

[Ed. Note.—For other cases, see Bastards, There must be some element of fraud practiced Cent. Dig. 88 1-3; Dec. Dig. 1.*] whereby the execution of the deed is induced; 3. EXECUTORS AND ADMINISTRATORS ($ 314*) and, in the case at bar, there is not a tittle of - SETTLEMENT OF ESTATE — SUIT - ATTORtestimony indicating that any such fraud was NEY'S FEE. practiced by the husband upon the wife in ob- Where, in a suit to settle a decedent's estaining this deed. 3 Pomeroy, Eq. Juris. par. tate, there was no sale of property, but it in1056."

volved a determination of the rights of certain Discussing the proof necessary to establisb children, the issue of a void marriage, an allowa trust ex maleficio, Mr. Justice Riddick, in of the estate to them.

ance for attorney's fees could not be made out the case of Ammonette v. Black, 73 Ark. 313,

[Ed. Note.-For other cases, see Executors 83 S. W. 910, said:

and Administrators, Cent. Dig. 88 1274–1297 ; "There must, of course, in such cases be an

Dec. Dig. $ 314.*] element of positive fraud by means of which the legal title is wrongfully acquired, for, if Appeal from Scott Chancery Court; W. A. there was only a mere parol promise, the stat- Falconer, Chancellor. ute of frauds would apply."

Suit by J. M. Evatt, as administrator of Both of the opinions of this court quoted the estate of Frank Mier (or Miller), against from cite with approval section 1056, 3 Pome-Anna Mier and others. From a decree findroy, Equity Jurisprudence, which reads as ing that Antone Frank Miller was the only follows:

legitimate and lawful heir of deceased, the “The foregoing cases should be carefully dis-administrator, as well as Lidmilla Miller tinguished from those in which there is a mere and others, appeal. Affirmed in part, and in verbal promise to purchase and convey land. In order that the doctrine of trusts ex maleficio, part reversed and remanded, with directions, *For other cases see same topic and section NUMBER in Dec Dig. & Am. Dig. Key-No. Series & Rep'r Indexes A man named Frank Mier (or Miller) died , children the allegations contained in the peintestate in Scott county, Ark., on April 11, tition of Anna were denied, and it was al1911. He had been a resident of that coun- leged that Lidmilla was the lawful wife, and ty for a number of years, prior to his death, her children the lawful heirs, of the said inand during all the time of his residence in testate. They alleged, also, that the mortthat county he lived with a woman named gages which were foreclosed, and under Lidmilla Miller, who was reputed to be his which M. C. Miller claimed title, as well as wife, and there was nothing in their rela- the judgment in favor of the said M. C. Miltionship which aroused even a suspicion to ler, were executed for the purpose of dethe contrary. In addition to his reputed frauding creditors, and of defeating them in wife, he was survived by four children, one the assertion of their rights in the estate of an adult daughter, who had married, and the intestate. three minor children, and these children The principals in this case were Bohenever suspected there was any question about mians, and resided originally in Brazos countheir legitimacy until after the death of their ty, Tex. The evidence is to the effect that father and the institution of the litigation Frank Miller had courted the two sisters, involving his estate. Although Miller ap- Anna and Lidmilla, who was the younger, pears to have owned considerable land and but that there was a Bohemian custom to the personal property at the time of his death, effect that a younger daughter should not his estate was largely involved, and after the marry while her elder sister was single, and qualification of appellant, J. M. Evatt, as ad. Lidmilla testified that she became angry ať ministrator of his estate, various debts were the attempt of the members of her family to probated. Among other demands filed for compel Frank to marry her sister, and left probate was a judgment in favor of M. C. home and moved to a point about 100 miles Miller, a brother of the intestate, and this distant, where she lived for something more brother, M. C. Miller, also had a mortgagee's than a year, when Frank came there and told deed, which he received upon the foreclosure her that he had married her sister, but that of a mortgage executed to him by his brother he had been divorced from her, and she says Frank. The administrator instituted a suit that thereafter they went to his camp, where for the benefit of the heirs and creditors, in he was engaged in working in timber, and which it was alleged that this deed, executed they were married; and that soon thereafter pursuant to the mortgage foreclosure, was they removed to Talihini, I. T., where they fraudulent and had been executed for the lived for a short time, after which they repurpose of cheating and defrauding various moved to Scott county, Ark., and lived tocreditors in the collection of their just de- gether as man and wife until the time of mands, and also for the purpose of placing their separation, about a year before the the property beyond the reach of a probable death of her husband. After Anna had been judgment creditor, who at the time of the deserted by her husband, she lived for some execution of the original mortgages had a years with a man named Cooper, and, alsuit pending against the intestate for a con- though she denies she was ever married to siderable sum of money. That cause of ac- Cooper, the evidence discloses the contrary tion, however, appears to have been disposed to be the truth. After living for some years of without the rendition of any judgment with this man Cooper, by whom she had a against the intestate.

169 S.W.-52

child, she lived for some years with a man A number of interventions were filed in named Richardson, by whom she had other this cause by various persons, who were children, and it appears she also married this made parties to that litigation. Among oth-man Richardson, although she denied that ers, one Anna Miller filed an intervention, that was a fact. There was no proof that in which she alleged that she and the intes- either Anna Miller or her husband, Frank tate were married on the 16th of February, Miller, ever secured a divorce. 1885, in Brazos county, Tex., and that about The chancellor found that Frank and Anna one year after their said marriage a son, Miller were lawfully married in Texas, and named Antone Frank Miller, was born to that Frank died intestate in Scott county, them, and that shortly thereafter her hus- Ark., without ever having been divorced from band deserted her and ran away with her Anna, and that Antone Frank Miller was his sister Lidmilla, with whom he had thereafter only child and lawful heir, and that all the lived until a short time before his death, property descended to the said child, subject when he and the said Lidmilla separated and to the payment of the intestate's debts and ceased to live together during the remainder the dower and homestead rights of the said of his life.

Anna. The court decreed that the judgment Antone Frank Miller was made a party in favor of M. C. Miller was a valid demand, and alleged that he was the only heir at law and that one of the mortgages had been asof the intestate. Lidmilla and her adult signed to the said M. C. Miller for a valuable daughter filed separate answers for them consideration, and that the other mortgage selves, and a guardian was appointed for the was given to secure the payment of money minor children of Lidmilla, who answered which had been used in the purchase of the for them. In the answer of Lidmilla and her and described in the mortgage, and the



court decreed that on that account the lands, law. In the case of Furth v. Furth, 97 Ark. there described were not subject to the dow- 272, 133 S. W. 1037, Ann. Cas. 1912D, 595, er rights of the widow.

it was said that: The administrator and Lidmilla and her "Even if it can be said that a present conchildren have duly appealed from that de tract of marriage between a man and a

man, followed by cohabitation, is valid under

the common law, we hold that the common law J. 0. Kincannon, of Booneville, for appel- in this respect has never obtained in this state." lants Miller. A. G. Leming, of Waldron, for And the reason for that holding was there appellant Evatt. Carmichael, Brooks, Pow- stated to be that, before the common law ers & Rector, of Little Rock, for appellees. was adopted in this state, statutes had been

enacted which regulated marriages, and SMITH, J. (after stating the facts as which prescribed the manner and form in above). We think the chancellor's findings which they might be solemnized, and that of fact are not contrary to the preponderance before the adoption of the common law, as a of the evidence. The proof shows that Anna part of our jurisprudence, marriage was reand Frank Miller were lawfully married, and garded as something more than a contract there was no proof they were ever divorced, between the parties, to be formed by present except Lidmilla's statement that Frank had words of agreement to live together as hustold her he had secured a divorce, and this band and wife, and that such contract could evidence was, of course, incompetent and not be entered into without being solemnized proved nothing; and, notwithstanding her by some person authorized by statute to do own subsequent bigamous marriages, Anna so, and these statutes regulating and precontinued to be and at the death of Frank scribing the manner and form in which marMiller was his lawful wife and entitled to riages may be solemnized are mandatory, her rights as such. The chancellor decreed and not directory merely. The point involv. that, as Frank Miller was indebted for money ed and there decided was: which he had previously borrowed from his "That the doctrine of so-called common-law brother M. C. Miller to pay the purchase marriages has never obtained or become a part price of the lands sold to M. C. Miller at the of the laws of this state.” mortgage foreclosure, there were no dower But the marriage there sought to be uprights in these lands in favor of Anna Miller, held, as a common-law marriage, was one although she did not join in the execution of contracted in this state. The question was the mortgage; but, as Anna has not appealed not involved, and it was not decided in that from this decree, we are not called upon to case, that such marriages would not be rereview the correctness of that decision. garded as valid in the courts of this state, if

[1] We think that the chancellor's finding valid in the state where contracted. Upon that the judgment and mortgages in favor of the contrary, section 5177 of Kirby's Digest M. C. Miller were based upon transactions provides that: had in good faith is not against the clear "All marriages contracted without this state, preponderance of the evidence. We think, which would be valid by the laws of the state too, that his holding that Lidmilla's marriage mated, and the parties then actually resided,

or country in wbich the same was null and void is correct, and she there shall be valid in all the courts in this state." fore has no rights in this estate; but we do not agree that her children are excluded

It is true Lidmilla gives a very unsatisfacfrom the right to participate in the divi- tory account of her marriage to Frank Miller, sion of that estate.

and her evidence is very similar to that given [2] The decision of that question involves in the case of Darling v. Dent, 82 Ark. 76, the construction to be given section 2640 of 100 S. W. 747. As in that case, so in this, Kirby's Digest, which reads as follows:

the wife was unable to state the name of the “The issue of all marriages deemed null in town where she was married, or the name of law, or dissolved by divorce, shall be deemed any person present. She did not know and considered as legitimate.”

whether a license had been procured, but So far as we are advised, this section has testified that a ceremony was performed by a never been construed in any case decided by priest, who had a book in his hand from this court. It will be observed that this sec. which he read. But in this case of Darling tion was brought forward from the Revised v. Dent, supra, there was quoted the language Statutes, and appears in the chapter on De- of Judge Cooley in delivering the opinion of scents and Distributions. It will be observ- the Supreme Court of Michigan in Hutch: ed, too, that the protection of this statute is ins v. Kimmell, 31 Mich. 130, 18 Am. Rer limited to the issue of marriages. It does not 161, as follows: apply to the mere progeny of illicit inter

“Whatever be the form of the ceremony, or course, nor to children born of persons whose ties agree presently to take each other for hus

if all ceremony was dispensed with, if the parrelationship is merely that of persons who band and wife, and from that time on live proare illegally cohabiting together as man and fessedly in that relation, proof of these facts wife. It shields only children born to par- : would be sufficient to constitute proof of a marents who undertake to marry, and do marry, ject them to legal penalties for a disregard of

riage binding on the parties, which would subbut whose marriage for any cause is null in its obligations."



And that case expressly held that the al-, first husband, are legitimate after the death leged marriage there considered, which oc.

of their father." curred in the state of Texas, would be valid It was the unanimous opinion of the court without formal ceremony, or the procurement in that case that the issue of the second of a marriage license, because common-law marriage were legitimate, and in a concurmarriages were valid in Texas.

ring opinion by Roane, Justice, it was said: But it does not follow, because Lidmilla's "The second marriage, therefore, was not marriage was contracted in Texas, where lawful; it was even void. But we cannot, in

this case, say that it was criminal. Circumcommon-law marriages were valid, that she stances may exist, such as a belief of the death is entitled to the rights which inure to a law- of the first husband, or a seven years' absence ful wife. The marriage was an unlawful by him, which may render the second marriage

even innocent. We are bound to consider thie one, because it was bigamous; and we quote marriage innocent, for we cannot, in this proagain from the case of Darling V. Dent, ceeding, inquire into its guilt. But if it were supra:

otherwise, if the Legislature should even be “While it is true that, if it be shown that supposed to consider every second marriage, the relations between Darling and Mrs. Wil- living a first husband or wife, as criminal, ļiams were illicit in the beginning, the burden wherefore should they visit the sins of the is upon those asserting a valid marriage agree spring? But this was not the temper of the

parents upon the innocent and unoffending offment to show that such an agreement was afterwards entered into, still there is no pre- riages, where the parties with full knowledge of

Legislature. In the case of incestuous mar. sumption that the relationship continued to be the everlasting bar which does and ought to illicit,

or whether it was changed to a exist between them, enter into this contract, legal and moral status."

and produce an innocent offspring in defiance of In the case of O'Neill v. Davis, 88 Ark. 196, laws human or divine, where you cannot sup113 S. W. 1027, the facts were that the par, scarcely possible one of an ignorance of the

pose a circumstance of excuse, except the ties whose marriage was there questioned consanguinity which exists between the parties, had lived together before the man was di- their offspring is not bastardized by our laws; vorced from a former wife, and continued to on the contrary, it is expressly provided (New live together after the man secured a divorce such' marriages shall not be construed to ren;

Code, p. 195, $13) that the nullification of from this wife, and in the opinion by Justice der the issue illegitimate.

It was said Battle it was there said:

by one of the appellee's counsel that the con. “Their continued cohabitation after the di- struction I adopt is inadmissible, as tending to vorce does not prove that they changed their encourage bigamy. It was well said in answer, intent, which was to live together without be- by one of the appellants' counsel, that consid ing married. The concomitants of their illicit erations of this kind, in relation to the offrelations are not sufficient, by their unasserted spring, form no part of the inducements to mar. probative force, to prove that when they were itself has given the answer.

riage. But this is not all. The Legislature at liberty to marry they embraced the oppor

That Legislature tunity. As Chief Justice Beasley said of such certainly meant not to encourage fornication, evidence in Collins v. Voorhees, 47 N. J. Eq. or incestuous marriages, and yet it has ex!. 315, 20 Atl. 676, 14 L. R. A. 364, 24 Am. st. pressly legitimated the offspring of both.” Rep. 412, 'to treat evidence which was in all This section of the Virginia Code remained respects and to the utmost degree in accord unchanged, and was again construed by the with the original purpose as proving, proprio Court of Appeals of that state in 1894 in vigore, a change of such purpose appears to be not only inadmissible according to the legal the case of Heckert v. Hile's Adu'r, 90 Va. rules, but as being in logic ridiculous.'" 390, 18 S. E. 841, where it was said: As we have said, there was no proof here

“The controversy in this case is between the that Frank Miller was ever divorced from left her husband and went to the state of

children of Peter Hile by a lawful wife, who Anna. At common law all children, ex. Michigan, and the children of said Peter Hile cept the issue of lawful marriages, were by another woman, married by him during the illegitimate and remained so; but the harsh lifetime of his first wife, who were born before

the dissolution of the marriage of the first wife. ness of this rule has been much relaxed, until The circuit court decreed that the first mar. now in most, if not in all, American states riage was lawful and the children legitimate ; statutes have been enacted which provide that that the second marriage was null, but that the the issue of a void or voidable marriage shall made so by our statute (section 2554, Virginia

children of this null marriage were legitimate, be legitimate notwithstanding the invalidity Code), * and that the second set of of the marriage. Long on Domestic Rela- children, being legitimate, inherited from the tions (2d Ed.) § 244, and cases there cited.

father as the first set, the issue of the legal

marriage. There can be no donbt of the corOne of the earliest states to enact a stat- rectness of this decision. The case comes withute to this effect was Virginia, where in 1785 in the plain provision of the statute cited a statute was passed which reads as fol- above, which is of ancient date in this com

monwealth, * and was carefully conlows:

sidered and construed in 1804 in this court, in “The issue of marriages deemed null in law, the case of Stone v. Keeling, 5 Call (Va.) 1434 or dissolved by a court, shall nevertheless be a decision under which we have since rested. legitimate."

In that case the law was considered in every The case of Stones v. Keeling, which was aspect under which it should be regarded, and

was sustained and made effective. But it is decided at the May term, 1804, of the Court contended by the counsel for the appellants of Appeals of Virginia, 5 Call, 143, involved that a recent case in this court has substanthe construction of this statute and the syl- cite Greenhow v. James, 80 Va. 636, 56 Am.

tially overruled Stones v. Keeling, and they labus in that case is as follows:

Rep. 603; but we do not so regard it. That “The issue of a woman by a second marriage, was the case of illegitimate children of a white which took place during the lifetime of her person by a negro, who left the state, and were

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